HQ 958590

October 26, 1999

CLA-2 RR:CR:TE 958590 RH

CATEGORY: Classification

TARIFF NO.: 6402.19.9030; 6402.19.1020; 9902.64.02

Mr. William Knoblauzh

Area Director

U.S. Customs Service

330 Second Avenue South

Suite 560

Minneapolis, MN 55401

RE: Protest Number 3501-93-100425; footwear; roller skates

Dear Mr. Knoblauzh:

This is in reply to the Customs Protest and Summons Information Sheet dated September 9, 1993, regarding the Application for Further Review of Protest (AFR) 3501-93-100425, which you forwarded to our office for review. Meyer Customs Brokers filed the AFR covering seven entries, on behalf of Rollerblade, Inc., against the classification of in-line skate boot shells with removable textile liners. The law firm of Powell, Goldstein, Frazer & Murphy filed a Memorandum of Fact and Law in Support of Protest.

We note that the instant AFR is a lead protest. According to counsel, the following protests on the same or similar issues concerning Rollerblade, Inc., have been suspended pending this decision on the lead protest:

Protests suspended at the Port of Minneapolis Protests suspended at the Port of Chicago

3501-93-100449 3901-93-102360

3501-93-100451

3501-93-100524

3501-93-100525

3501-93-100537

3501-94-100086

3501-94-100089

3501-94-100141

3501-94-100246

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Protests suspended at the Port of Minneapolis

3501-94-100270

3501-94-100297

3501-94-100414

*two additional unidentified protests covered by entry number XXX-XXXXXXX-X dated April 12, 1993, and entry number XXX-XXXXXXX-X dated August 12, 1992.

Customs liquidated all of the entries in the subject protest on June 11, 1993, under subheading 6402.19.9030 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in part, for sports footwear with outer soles and uppers of rubber or plastics, not having uppers of which over 90 percent of the external surface area is rubber or plastics.

Thereafter, the protestant timely filed this action on September 9, 1993.

FACTS:

The merchandise under protest consists of four models of polyurethane shells used solely in the manufacture of in-line roller skates. The shells consist of a molded polyurethane upper and a removable, padded textile and/or removable vinyl liner. The boot frames have plastic uppers and bottoms and extend above the wearers ankles. They are designed to be worn with textile booties which are exposed through holes in the plastic boot frames and above the top of the shaft. The first model is the Special Make Up (SMU). It has a black plastic shell with 12 eyelets and one plastic rachet-and-buckle type strap. It also has a black liner with a purple plastic tongue. The Mondoblade has a black plastic shell with 16 eyelets and no closure strap, and a white liner with a white plastic tongue. The Aeroblade consists of a metallic-looking gray plastic shell with no eyelets and three purple rachet-and-buckle type straps and a dark gray liner. The last model, Coolblade, also has a metallic-looking gray plastic shell with no eyelets and three rachet-and-buckle type straps which are green, red and yellow. It also has a dark gray liner.

In addition to the four models at issue in the lead protest, counsel states that the suspended protests cover the following models of boot shells used solely in the manufacture of in-line roller skates:

Bravoblade; Geoblade; Grand Prix (SMU); Lightening TRS; Macroblade; Metroblade; Microblade; Powerblade; Zetrablade; Blade Runner; Slalomblade

Based on a case pending before the Court of International Trade (CIT) at the time the instant protest was filed, Rollerblade Inc. v. United States, Docket Number 91-12-00981, 112 F.3d 481 (CIT 1997), Customs suspended action on the protest pending the courts decision. Initially, the protestants primary argument was that the merchandise was classifiable as roller skates and

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parts and accessories thereof under subheading 9506.70.2000, HTSUS, and not footwear of any kind. In Rollerblade, the court addressed whether the footwear provisions under the Tariff Schedule of the United States (TSUS) and the HTSUSA were broad enough to encompass roller skate boots imported without wheels. For purposes of this ruling, we will only discuss the courts decision as it pertains to the HTSUSA.

In Rollerblade, the merchandise consisted of rigid, molded plastic (polyurethane) boots which included a removable, padded vinyl liner. The bottom of each boot was molded to accommodate the permanent attachment of wheel frames and wheels. The court rejected plaintiff-appellees claim that the boots were classifiable as roller skates and parts thereof in subheading 9506.70.20, HTSUSA, determining that footwear under the HTSUSA encompasses shoes of the type used for attachment to skates, while the roller skate parts provision covers plates, blades and wheels.

In light of the recent court decision, the protestant abandoned its claim that the skate boots are classifiable in chapter 95, HTSUSA, and now raises the following grounds on which the pending protests can be approved:

1. All but one of the entries were made BEFORE December 31, 1992, and therefore qualify for duty-free entry under heading 9902.64.02, which suspended the duty on skating boots used in the manufacture of in-line roller skates (provided for under subheading 6402.19.10) through December 31, 1992.

2. All of the entries covered by protest 3501-93-100425 were unlawfully reliquidated by Customs Service well beyond 90 days after the original liquidations.

3. Minneapolis Customs now concedes that most of the models have external surface areas of more than 90 percent rubber or plastics.

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A member of my staff met with counsel on August 25, 1994, and again on September 18, 1998, to discuss the issues in this case. At the last meeting we afforded counsel an opportunity to submit additional information to support the AFR, which we received on April 1, 1999.

ISSUES:

1. Do the boot frames/shells qualify for duty-free entry under subheading 9902.64.02?

2. Were the entries covered by protest 3501-93-100425 unlawfully reliquidated?

3. Is the external surface area of the uppers of the imported polyurethane shells more than 90 percent rubber or plastics?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in their appropriate order.

Customs liquidated the four styles in this protest under subheading 6402.19.9030, of the 1993 HTSUSA, which provides, in part, for other footwear with outer soles and uppers of rubber or plastics.

Counsel argues the skate boots at issue are classifiable in subheading 6402.19.1020, HTSUSA, as other sports footwear having uppers of which are over 90 percent of the external surface area is rubber or plastics.

Note 3(a), Chapter 64, states that the terms rubber and plastics include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye.

Note 4(a), Chapter 64, reads:

The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments.

The record contains a Customs laboratory report for five of the samples which reflect the following findings:

Model Name Rubber or Plastics, By Area

SMU 96 %

Mondoblade 91 %

Geoblade 91%

Aero-Blade 87%

Cool-Blade 89%

Based on these laboratory analyses,we agree with the protestant that the SMU, Mondoblade and Geoblade have an external surface area of the upper (ESAU) which is over 90 percent rubber or plastics and that those models of skate boots are classifiable in subheading 6402.19.1020, as claimed. Additionally, your office has advised us that the models Lightening TRS, Macroblade, Metroblade, Microblade, Zetrablade and Slalomblade on the suspended protests have been examined and also found to be classifiable in subheading 6402.19.1020. However, your records do not show invoices for the Bravoblade, Bladerunner and Grand Prix and, therefore, we will not address those models.

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Furthermore, the protestant concedes that the external surface area of the upper (ESAU) of the Powerblade boot is well below 90 percent rubber or plastics. Thus, we only need address classification of the Aeroblade and Coolblade models.

The Aeroblade and Coolblade models do not have eyelet stays. Counsel states that those models have liners that protrude above the cuff of the shell and portions of the liner that are visible through ventilation apertures. Since the liner is covered with a vinyl material, counsel argues that it must be included in calculating the percentage of the external surface area of the uppers consisting of rubber or plastics.

Finally, counsel contends that the exposed portion of the tongue must also be included in calculating the percentage of the external surface area of the uppers consisting of rubber or plastics. On the Aeroblade and Coolblade models, counsel claims that the tongue is actually a continuous part of the plastic molded shell and cannot be distinguished between the tongue portion of the polyurathane shells from the remainder of the upper.

In order to assist importers in better understanding classification requirements for footwear, Customs published Footwear Definitions in T.D. 93-88, 27 Cust. B. & Dec. No. 46, on October 25, 1995. The definitions serve merely as guidelines and are not to be construed as Customs rulings. The definition of External Surface reads:

1. The external surface of the upper is, in general, the outside surface of what you see covering the foot (and leg, if applicable) when the shoe is worn.

A. It does not include:

1. Accessories and reinforcements such as ankle patches, edging, ornamentation, (i.e., tassels, pompons, or braids), buckles, tabs, eyelet stays, slide fasteners, or similar attachments. Other examples include the leather pieces sewn on the top of the lower part of the upper in basketball shoes, and filled-in embroidery.

2. The uppers lining, which faces the foot.

3. The sock lining that the foot rests on.

4. The tongue.

* * * * *

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B. It does include:

1. Small holes in materials. The holes count as if they were filled with the material which surround them.

* * * * *

4. Underlays, which are the outer side of lining that can be seen through large holes in the uppers. Any hole bigger than a collar button is surely large; one smaller than a pin head is surely not large; In between, it depends on the materials, shape spacing etc.

* * * * *

In Headquarters Ruling Letter (HQ) 955541, dated May 18, 1994, Customs addressed the classification of a mans basketball shoe with a removable liner. Although the shoe did not qualify for classification in subheading 6402.91.40, because it had a foxing-like band, the ruling is relevant in that we stated that:

When the frame and the liner are imported together, the external surface area of the upper of the complete shoe include all of the textile areas where the textile liner is the only material covering the foot. Again, the plastic oval, which we consider to be the partial equivalent of a tongue is not counted as ESAU or as accessories or reinforcements.

In HQ 955705, dated March 1, 1994, Customs classified a mans high top, lace-up athletic shoe frame with a unit-molded plastic sole and a plastic upper imported with removable textile bootie-like liners with applied textile soles in subheading 6402.91.70, because the textile portion comprised at least 10 percent of the external surface area of the upper. The external surface area included a narrow, textile topline trim on the shoe, and textile where the bootie shows above the topline and the tongue, and where it shows through the three cutouts in the lateral side of the upper.

It is Customs position that the tongue or flap of footwear which extends upward from the top line of the shoe and is visible and tactile is included in the calculation of the exterior surface of the upper. T.D. 84-59, 18 Cust. B. & Dec. 166 (January 11, 1984). It has consistently been Customs position that the exterior surface area of the upper is whatever is visible and tactile on the surface excepting such things as buttons, strips and other loosely attached appurtenances. In those cases where the tongue was held not to be part of the exterior surface area of the upper, it was on a plane lower than a portion of the upper and was partially or wholly covered by laces and eyelet facings or strays. Id.

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In this case, we agree with counsel that the portions of the liner which are exposed through the holes in the boot frame and above the shaft and the exposed portion of the tongue which extends upward from the top line and is visible and tactile are included in the ESAU. With this in mind, a Customs laboratory examined both the Aeroblade and Coolblade models and determined that the textile portions accounted for more than 10 percent of the ESAU.

Customs reviewed the laboratory reports and methodology used to determine the ESAU and concluded that Customs methodology and test results were acceptable. The report reads, in pertinent part as follows:

The subject footwear is constructed chiefly of a hard molded plastic exterior with a textile liner. The difficulty in the analysis of this type of footwear is that the molded plastic cannot be made to lie flat in two pieces for analysis, which is the conventional way to prepare the sample in order to calculate the ESAU according to the U.S. Customs Laboratory Method for Footwear. According to your cover memorandum, the protestants counsel has suggested that the Customs laboratory measurement was inaccurate due to improper methodology, and a copy of the methodology used by the protestants private testing service was submitted for our review. The methodology involves the use of a ConTact Paper technique for determining ESAU.